"File fresh reply:" Supreme Court to Central government on plea by academics for guidelines to govern seizing of personal digital devices

A bench of Justices Sanjay Kishan Kaul and MM Sundresh said that the counter-affidavit filed by the Central government was incomplete and not satisfactory.
[From L to R] Justice Sanjay Kishan Kaul and Justice MM Sundresh
[From L to R] Justice Sanjay Kishan Kaul and Justice MM Sundresh

The Supreme Court on Friday asked the Central government to file a fresh reply to the plea by a group of academicians and researchers seeking guidelines to govern investigating agencies in the country with respect to seizure, examination and preservation of personal digital and electronic devices and their contents.

A bench of Justices Sanjay Kishan Kaul and MM Sundresh said that the counter-affidavit filed by the Central government was incomplete and not satisfactory.

"We are not satisfied with the counter-affidavit and we seek a new and proper reply with references to international practices as well. List on September 26," the Court directed.

The Court also remarked that many a time, such devices carry personal content or work which need to be protected since the livelihood of people in academia depend on it.

"But these have personal contents and we have to protect this. People live on this," the Court said.

Stating that the plea is not maintainable is not enough, the Court added.

"The counter affidavit is not complete. Saying not maintainable etc is not enough. Please look into it yourself Additional Solicitor General. I don't think an officer of this level can look into it," the bench remarked

Additional Solicitor General (ASG) SV Raju, representing the Central government, assured the Court that the government will apply its mind to it.

The petitioners in the case are, former JNU professor and researcher,Ram Ramaswamy; professor at Savitribai Phule Pune University, Sujata Patel; professor of Cultural Studies at the English and Foreign Languages University, Madhava Prasad; professor of Modern Indian history at Jamia Millia Islamia, Mukul Kesavan and theoretical ecological economist Deepak Malghan.

It is their case that the entirely unguided power exercised by investigative agencies to take control of devices that "contain much if not all of a citizen’s personal and professional life, requires to be civilised by way of directives from Supreme Court."

The plea said that several of the persons from whom the devices have been seized in various cases in the recent past are from the academic field or authors of repute.

"The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable," the petition stated.

It was the petitioners' argument that there is no procedure or guideline stipulated in any law or even in most police manuals of a mode appropriate to the recovery of electronic/digital material, which is distinct from the recovery of other kinds of material.

"The CBDT manual has some reference to this but neither the CBI nor the NIA appear to have any procedural protocol in this regard," the plea said.

Substantiating on the point of seizure memo, the petition submitted that such a memo merely mentioning that a computer device, laptop or phone has been seized, is not at "all a specific description of what has been seized in view of the wealth of the material such a device contains, much of which would be no concern of any state agency or anyone else.

Hence, the petitioners emphasised that the copy of what is seized must remain with an accused in a form that cannot be modified.

"A hard drive is a source of so much information which can be interpreted and misinterpreted, and the copy of what is seized must remain with an accused in a form that cannot be overwritten or changed so that he can offer his own interpretation of what is present, including involuntary downloads, access, and any interpolation can be detected," the petition said.

In this regard, the petitioners also adverted to Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights ratified by India, contending that the same binds State Parties to protect the moral and material interest in any scientific, literary or artistic work.

If the data and research of such academicians are tampered with or damaged, the loss to research in the sciences and social sciences is considerable and often irreplaceable, the petition said.

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